Design

October 12, 2010

The International Criminal Tribunal for Rwanda (ICTR): Seeking Justice for Victims or Imposing a Victor’s Justice?

By Dibussi Tande

The International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania, is different things to different people. To some, it is merely a tool to assuage Western guilt for not doing enough to stop the 1994 Rwandan genocide; to others, the ICTR is a victor’s court designed to give a veneer of legality and legitimacy to the Rwanda Government’s one-sided narrative of the events leading up to and during the genocide – a narrative that makes a black-and-white distinction between the Tutsi victims on the one hand and the Hutu perpetrators on the other; still, there are others who believe that the tribunal’s mandate is a just and necessary one, i.e. to prosecute “persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda between 1 January 1994 and 31 December 1994”. And there are yet others who view the court’s mandate and performance thus far in shades of grey.

Whatever their views about the ICTR, most people think of the tribunal in very abstract terms, i.e., a faceless and amorphous international bureaucratic behemoth chugging ever so slowly and unemotionally towards the fulfilment of its mission. Even though I have a good number friends, acquaintances and family working in the court as interpreters, translators and legal officers, etc., I must admit that I also viewed the ICTR in these abstract terms, that is, until last week when I had the privilege to visit the Arusha International Conference Center, home of the ICTR. This brief trip to the ICTR, which included a stopover at the very vital Language Services with its huge, if not predominant, Cameroonian contingent, revealed a very real institution with hundreds of dedicated international functionaries working hard, within the limits of international law and (real)politics, to unravel the Rwandan puzzle, while laying the foundations for a more responsive international human rights law for the 21st century; functionaries who have to deal with the emotional toll of reliving the gory details of the Rwandan genocide day in day out - an experience which can sometimes be as traumatic as the real event itself...

I also had the opportunity to sit through portions of the proceedings of Case No. ICTR-98-44, The Prosecutor v Édouard Karemera, Matthieu Ngirumpatse and Joseph Nzirorera (“Karemera et al”). Karemera (Minister of Interior), Ngirumpatse (President of the Rwandan ruling MRND) and Nzirorera (President of the National Assembly) were three former officials in the Rwandan Interim government of April 1994 which carried out the genocide. The case against Nzirorera was dropped following his death on July 1, 2010 in Arusha. [Click here to read Nzirorera's pre-defence brief ]

According to the ICTR indictment, the three are charged with seven counts including genocide, complicity in genocide, incitement to commit genocide and crimes against humanity, allegedly committed mostly by members of their party, the MRND, particularly it youth wing, the infamous Interahamwe. The indictment specifically that:

Édouard KAREMERA, Mathieu NGIRUMPATSE, and Joseph NZIRORERA acting alone and in concert with other members of the joint criminal enterprise participated in the joint criminal enterprise in the following ways: they created, founded, and organized the Interahamwe; recruited members for the Interahamwe; provided weapons, military training and indoctrination to the Interahamwe; purchased and distributed weapons to armed militias, particularly the Interahamwe; organized and participated in rallies and public meetings that promoted the ideology of "Hutu Power"; made public statements and engaged in public displays that supported anti-Tutsi ideology; legitimized Interim Government at international fora and manipulated press reports of the genocide; led propaganda efforts to accelerate the genocide; publicly characterized the Tutsi as "accomplices of the enemy" or publicly acquiesced to such characterization; organized and participated in meetings of the MRND [Mouvement Républicain pour la Démocratie et le Développement] for such purposes; incited, encouraged or abetted killings of Tutsis; rewarded or praised persons who killed Tutsis; participated in the formulation and implementation of the policies of the Interim Government of 8 April 1994 that were directed to those ends; and mobilized the physical and logistical resources of their respective political parties and the Interim Government ministries controlled by those parties, and the military.

Watching the proceedings from the public gallery of Trial Chamber III as Prosecution Counsel Don Webster cross-examined defence witness André Nzabanterura (Interahamwe President in Kimihurura secteur in Kigali), under the watchful eyes of Judges Byron (Presiding), Kam and Joensen was quite an experience. Suddenly, the “genocide” – that other vague and faceless term – became very real with some of the actors just a few feet away from me [Click here for the minutes of this particular session]

The very detailed questions of the prosecutor, the constant references to minute details from nearly two decades ago (along with the need to have the entire proceedings simultaneously interpreted in at least four languages), shed light on repeated complaints about dreadfully slow pace of ICTR proceedings and the limited number of individuals who have so far been tried. But can it be otherwise given what it as stake? I doubt it. However, one cannot help but wonder whether in the end, justice delayed is not justice denied as many critics of the tribunal have argued. For instance, this was Day 334 of the Karemera trial, with only 15 of the 35 defence witnesses having appeared already before the court. At this rate, one wonders whether the court can effectively complete its (already extended) mandate before the end of 2011 deadline...

The UN Genocide Mapping Report – “Double Genocide”?My stay in Arusha coincided with release of final version of the controversial UN “Mapping Report” on October 1, 2010, which details the most serious violations of human rights and international humanitarian law committed in the Congo between March 1993 and June 2003. The report accuses the Rwandan army and its Congolese allies (the AFDL) of embarking, in 1996 and 1997, on an "apparently relentless pursuit and mass killing of Hutu refugees," resulting in the deaths of "several tens of thousands."; According to the report, these were "apparent systematic and widespread attacks... that, if proven before a competent court, could be characterized as crimes of genocide” or at the minimum, “crimes against humanity." [For a quick overview of the Mapping Report and its consequences, see this Human Rights Watch Analysis]

The Mapping report concludes with a call for “a full judicial investigation into the events that occurred in Zaire in 1996 to 1997 in order to permit a competent court to decide on the matter.” The report, which the Rwandan government has rejected and accused of trivializing genocide, has once again raised the spectre of expanding the ICTR’s mandate to cover atrocities committed by the Tutsi-led Rwandan Patriotic Front during its march to Kigali in 1994 and its incursion into Eastern Congo in 1996-1997. In fact, even before the release of the Mapping report, there were many critics who argued that the tribunal's failure to prosecute officials of the Rwandan regime would likely compromise its work in the long run.

Today, there are many who argue that the only way to ensure that the ICTR does not become the “victor’s court” that its critics have claimed it is, is by prosecuting the RPF and its successor, the Rwandan army, for crimes committed in 1994 and after.

The consensus, however, is that the probability of Rwandan officials being brought before the ICTR or a similar tribunal is very slim given the prevailing international climate. As HRW pointed out in a recent report, “It seems unlikely that there would be sufficient international interest to expand the tribunal's mandate and keep it in operation beyond its current completion date.” The mapping report has not changed this equation. Even though President Paul Kagame, the West’s erstwhile “Golden Boy” may have lost some of his lustre in recent months (controversial elections, brutal crackdown on political opposition, arrest of Peter Erlinder, scathing rebuke from the usually friendly international media, etc.), he is still considered an indispensable ally in the region, and therefore, largely untouchable. The result according to critics is the “Nuremberg paradigm”, i.e., a one-sided system of justice which punishes the vanquished exclusively, while making light of, or simply ignoring the crimes of the victors.

The October 11 arrest of Callixte Mbarushimana, the leader of the FDLR (Democratic Forces for the Liberation of Rwanda), the Rwandan Hutu-led rebel group, for war crimes and crimes against humanity committed in the Congo – barely two weeks after the release of the Mapping report – without any concomitant effort to pursue the Rwandan officials for their alleged role in the atrocities in the Congo in 196-1997 will only heighten Hutu sense of victimhood and cast yet another shadow over the work of the ICTR.

True, the ICTR has promised more than it delivered, but it was a necessary legal instrument, given the need to bring the architects of the Rwandan genocide to justice, and to establish the jurisprudence required to deal with similar events in future.

The chilling details of the Karemera et al case clearly demonstrate how the quest for political power and/or ethnic hegemony, particularly in Africa, can easily slide into crimes against humanity and genocide. The accused in this case were probably fairly regular folks who, in their quest for power, allowed themselves to be swept away by an ethno-political maelstrom which transformed them into architects of one of the most barbaric events of the 20th century. What is so frightening about it all is that this could be the story of any African country. This could be the story of Cameroon. In fact, some will argue that this was indeed the story of Cameroon during the “années de braise” or the “smoldering years” of 1990-1993, when hardliners unleashed the infamous “operation mygale” very similar to the ideology and politics of “Hutu Power” which culminated in the Rwandan genocide. Since this can happen anywhere, the ICTR by its mere existence, and in spite of its imperfections, serves as a warning that perpetrators of such inhumanity will be brought to book.

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Interesting! Incidentally, I just finished reading an article about the (im)possibility of extending the ICTR's mandate to try Kagame. It states that:

“If the United States wants something to happen, in terms of punishing these criminals, there’s a way to do it. If the U.S. doesn’t want it to happen, it won’t happen, tribunals or no. Because the United States controls the ICTR, because the United States controls the ICC, because the United States controls the Security Council. So extending the mandate of the ICTR has no effect unless the policy of the United States changes to allow the prosecution of the RPF and Kagame for the crimes that are already known that they’ve committed, and those crimes have been known for 15 years.”

You mention "operation mygale" and then there are the horrible crimes against Bami and Bassa in 1958-1970 with hundreds of thousands wiped out. In that case, the Cold War and France provided cover. There is the "anglophone problem" which has some elements of another potential bloodbath.

1. INTRODUCTION
1.1 WHAT IS NESPROG?
Published in 1996 at the time when the country swore only by IMF and World Bank Structural Adjustment Programmes, NESPROG was an integrated, coherent socio-economic policy framework. It sought to mobilise Cameroonian people and the country's resources towards the final eradication of poverty and the building of a democratic and developed society.
NESPROG was supposed to be updated, at least, every seven years, in order to be in step with changes in the global economy as well as the national policy timeframe which provides for presidential elections at the end of this period. Unfortunately, the lack of means and the blocking of the democratic process that gave priority to exclusively political considerations did not make it possible. The update, today, that comes more than ten years after, takes on a completely new form, a new draft, with regard to upheavals that the global economy has witnessed for sometime as well as the immense damage that the ill-adapted structural adjustment policies and chronic poor governance caused to the economic and social fabric of the country.
Within the framework of the NESPROG, the SDF will develop when time is right detailed positions and a genuine programme of government.
The NESPROG has been drawn up by the SDF in consultation with other key political parties and non-governmental organisations (NGOs). Many university lecturers and researchers assisted in the process.
This process of consultation and joint policy formulation must continue. In that line key sectors of our society such as the business community and churches must be consulted and encouraged to participate as fully as they may choose.
Those organisations within civil society that participated in the development of the NESPROG will be encouraged by an SDF government to be active in and responsible for the effective implementation of the NESPROG.
1.2 WHY NESPROG?
1.2.1 Need to put an end to illusions
The catastrophic situation of the Cameroonian economy is certainly the result of failure in the management of its governing elite till date; however it took a turn for the worse over the last twenty years by way of a series of illusions.
The first illusion is to think that democracy has no place in the economic development of a country.
The second illusion is to believe that the path to development must necessarily come from abroad.
The third illusion consists in giving priority to palliative solutions to poverty whereas it shows simply an absence of development.

1.2.2 Democratic preconditions and institutional reforms
For a long time donors wallowed in the illusion that it was possible to turn-around the economy of a country without meddling in local politics in general. Particularly, they have for a long time been reluctant mounting pressure on governments to be more democratic. It was only from 1999 as we would see subsequently when they realized the havoc that poverty was wreaking that they came to terms with the slippages of poor governance whose main characteristic is the complete absence of democratic practices in the management of human and physical resources. In the case of Cameroon, for example, if from 1987, the year of the first programme with IMF and the World Bank, donor institutions had mounted pressure on Mr Biya to lead the country to the path of greater democracy, there would have been a reinforcement of the State of law and consequently less impunity and particularly less corruption, elements that rubbish most efforts at turning around the economy of the country.
When the situation of African countries under structural adjustment is examined on a case by case basis, we realize that the wealth of these countries in question depend in large measure on the quality of governance.
Thus, in countries where a particularly antidemocratic form of governance obtains like Cameroon, the Congo Democratic Republic or Chad, there is an explosion of numerous perversions like corruption, cronyism, nepotism and tribalism that hamper the building of viable States and the putting in place of solid and efficient political and economic institutions. Hence, a constant incapacity to formulate efficient strategies to put the economy on track.
On the other hand, where significant efforts are made to reinforce the State of law, to institutionalize democratic practices and to promote good governance, there is more rationality in approaches to issues of development and in actions aimed at promoting the general well-being. Countries like Botswana, Mauritius Island, South Africa, Morocco, Ghana, Benin, Mali or Senegal are examples.
It has been proven that contrary to certain outdated believes, democracy and good governance are more enabling to development than autocracy.

1.2.3 Need to go beyond structural adjustment programmes
In order to square up to the global economic crisis set in motion by the oil crises of 1973 and 1977 and which began to hit Cameroon from 1985, the government after hesitating for a long time embarked from 1987 on structural adjustment programmes with the IMF and the World Bank, that were presented as veritable magic recipes to resolve all the economic problems of the country. Immediately, the government dropped development planning that was so dear to President Ahidjo and reduced its economic policy to a frantic race to meet the requirements of international donor institutions.
From one failure to another, due partially to their inappropriateness to the context and, on the other hand, to the impossibility of government to respect commitments taken vis-à-vis donors, these programmes led to such a dilapidation of the economic and social fabric that poverty spread in an exponential manner.
As from 1999, the Bretton Woods institutions tried to adopt a new approach by adding to their programmes an important social component based on poverty alleviation. This was the birth in 1999 of the Poverty Reduction and Growth Facility (PRGF) in place of the Reinforced Structural Adjustment Facility (RSAF). The latter was replaced in 2000 with the highly indebted poor countries initiative (HIPC) aimed at totally or partially reducing the debt of poor countries that qualify for the initiative, including the commitment to use the reduction gains to alleviate poverty.
The admission of Cameroon to this programme led it to attain in 2006 the famous completion point that enabled it to obtain a significant reduction of the stock of its debt and a promise of financing amounting to more than CFAF 2000 billion over twenty to fifty years.
The great hopes raised by this success were quickly dashed because more than three years later, there is no improvement in the living conditions of Cameroonians. Worst of all, poverty is witnessing an upward trend in the country to a point where half of the population find themselves below the poverty line.
The SDF economic programme is thus an alternative to both the management failure of the Biya regime and the inappropriateness of structural adjustment policies imposed till date on our country by international donor institutions.
1.2.4 Poverty alleviation
Cameroon history during the last twenty seven years has been a bitter period of dictatorship, corruption and failed economic policies. The result is the generalisation of poverty and the degradation of the living conditions of Cameroonians.
With the failure of Biya government policies came the structural adjustment plans as shown above followed by the HIPC initiative with aims of alleviating poverty which has become a major concern of the international community. Furthermore, it is one of the millennium objectives adopted by the United Nations during its General Assembly of September 2000 in New York that aims at reducing poverty by half in the world by 2015. (1)

………………………………………………………………………………….
(1) The millennium objectives for 2015 are as follows: (1) Reducing extreme poverty by half, (2) Ensure primary education for all, (3) Promote equality of the sexes and women empowerment, (4) Reduce by two thirds the mortality of children of less than 5 years, (5) Reduce by three-quarters maternal mortality, (6) Fight against the propagation of diseases, particularly HIV/AIDS, (7) Ensure a sustainable environment, (8) Install a world partnership for development including aid, trade and debt reduction objectives.

Unfortunately, it is clear that the strategies used till date to combat poverty and meet the millennium objectives are far from providing the results expected. For example, according to the UN Human Development Reports, school enrolment in Cameroon was 55% of school age children in 2005 but dropped to 52.3% by 2007. This can be blamed on the exclusively social approach that guides the action of Mr Biya’s government within the framework of the HIPC initiative of the IMF and the World Bank.
With the NESPROG SDF proposes a radical change of approach with the conviction that poverty is nothing other than the manifestation of a lack of development. The SDF is convinced that to alleviate poverty in a sustainable manner, it is necessary to turn around the national economy in order for it to be on the path of a sustainable and lasting growth.

1.3 THE BASIC PRINCIPLES OF THE NESPROG
NESPROG is essentially centred on:
1.3.1 A people driven process
Cameroonian people, with their aspirations and collective determination for change, is the most important resource for NESPROG. It is focused on people's most immediate needs, and it relies, in turn, on their energies to drive the process of meeting these needs. Development is not about the delivery of goods to a passive citizenry. It is about active involvement and growing empowerment.
1.3.2 The building of a state of law
Since its birth in 1990 the SDF has been at the vanguard for the institution in Cameroon of a State of law. The foundation of a State of law entails the existence of a constitution, adopted mutually and accepted by all and which takes precedence over the entire institutional structure. That is why it is called the fundamental law.
The State of law is also characterized by the existence and separation of three traditional powers i.e the executive, legislative and the judiciary as well as an independent judiciary that renders justice dispassionately.
In a State of law, the functioning of institutions provided for by the constitution draws from the source of moral and philosophical principles shared generally by the majority of the population and feeds on a sound and dynamic democratic practice that provides for the free selection of leaders, a constant renewal of executives and constant sanction of their management.
Finally, with the globalization of exchanges, it is now indispensable for a State of law to strive for integration in an always large environment in order to draw maximum profits from coordinated synergies and to be a major actor in international cooperation.
We have not reached this stage in Cameroon. And yet, only such a State can guarantee to Cameroonians the possibility to formulate in the long-term effective development strategies to alleviate poverty, boost the economy in a sustainable manner, promote its competitiveness in order to enable it win the globalization battle.
Consequently, the SDF commits to undertake all necessary reforms to reinforce the State of law including above all the organization of a constitutional conference in charge of amending the present constitution, rewriting of the electoral law and the putting in place of an independent electoral commission and the organization of free and transparent elections at all levels in order to endow the country with legitimate leaders capable of steering the country to the path of recovery.

1.3.3The need of federalism and the principle of subsidiarity
The SDF thinks that the most appropriate way to embark on a self-reliant economic development is the putting in place of a highly decentralized state structure. The most elaborated form of political decentralization lies in a state structure of a federal nature. Generally, most developed countries and even those that record a rapid economic development are highly decentralized states.

1.3.4 The defence of social democratic values
The SDF stands for social liberalism which, while promoting the law of the free market considers that the latter must be exercised under the authority of a regulatory State which ensures fairness of general rules and the pre-eminence of the spirit of national solidarity and social justice. The economic policy of the SDF must protect private property, encourage private initiative and free competition. The role of the State is